Dangerous and insanitary Buildings Policy

We are reviewing our Dangerous and Insanitary Buildings Policy

We are reviewing our Dangerous and Insanitary Buildings Policy

The Policy outlines how the Council will manage situations where it considers a building or buildings to be either dangerous, affected or insanitary.

Section 131 of the Building Act 2004 requires the policy to state:

  • The approach the territorial authority will take in performing its functions under Part 2 (Building), Subpart 6 (Special provisions for dangerous, affected, and insanitary buildings) of the Act; and
  • The territorial authority’s priorities in performing those functions; and
  • How the policy will apply to heritage buildings and include affected buildings.

The policy is required to be reviewed every five years.  Amendment or replacement of the policy may only be made in accordance with the Special Consultative Procedure set out in section 83 of the Local Government Act 2002.


What are we changing?

We’ve taken a look at the current Dangerous and Insanitary Buildings Policy 2011 and consider it requires updating  to align it with changes to the Building Act 2004 and to comply with new requirements brought in by the Building Amendment Act 2013.  

The Building Amendment Act 2013 requires the Council to take into account “affected buildings” in its Dangerous and Insanitary Buildings Policy.  We have now included this change in the draft Policy, along with a number of other minor amendments, such as:

  • A change to Part H of the policy, which deals with the Council’s approach to heritage buildings that are classified as dangerous, insanitary or affected buildings.
  • Updating definitions and relevant legislation; and
  • An emphasis on the principles to be applied in performing functions or duties or exercising powers under the Building Act2004; and
  • The inclusion of information about disputes and information disclosure.

Purpose

The purpose of this policy is to provide a transparent, reasonable and certain framework within which Council and its partners can ensure the health and safety of people and the protection of property in and around dangerous and insanitary buildings while being mindful that there are certain risks in relation to dangerous and insanitary buildings that people in Porirua are willing to take. 

Objective

Council’s key task is to balance and protect the health and safety needs of building users while maintaining realistic expectations on building owners to provide for these needs.

Introduction

Buildings which could be considered as dangerous or insanitary typically have come to the attention of Council as a result of complaints from members of the public or as a result of routine inspections carried out by Council staff.  In this respect, Council has well developed practices that deal with the problems that these buildings raise. 

Scope of Policy

The scope of this policy is limited to how Council will perform its functions in relation to Dangerous and or Insanitary buildings once buildings that may be Dangerous or Insanitary come to the attention of Council (unless there is the occurrence of a natural disaster whereby Council will inspect all significant  buildings). 

Statutory Framework

The Requirement to Adopt a Policy on Dangerous and Insanitary Buildings

Building Act 2004: s131 requires all Territorial Local Authorities (TLA’s) to adopt a policy on its intended performance of statutory functions in relation to Dangerous and Insanitary buildings and to review this policy at least every 5 years.  The policy must specify Porirua City Council’s:

  • approach towards performing its functions in relation to Dangerous and Insanitary buildings
  • priorities in performing those functions
  • application of the policy to Heritage Buildings.

 

Definition of Dangerous Building

Building Act 2004: s121 states that a building is dangerous if 

(a) in the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause - 

(i) injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property; or

(ii) damage to other property; or

(b)   in the event of fire, injury or death to any persons in the building or to persons on other property is likely because of fire hazard or the occupancy of the building.

 

Definition of Insanitary Building

Building Act 2004: s123 states that a building is insanitary if the building –

(a)  is offensive or likely to be injurious to health because –

(i)  of how it is situated or constructed; or

(ii) it is in a state of disrepair; or

(b) has insufficient or defective provisions against moisture penetration so as to cause dampness in the building or in any adjoining buildings; or

(c)  does not have a supply of potable water that is adequate for its intended use; or

(d)   does not have sanitary facilities that are adequate for its intended use.

The purpose and principles of building act 2004 relating to dangerous and insanitary buildings

The definitions of dangerous and insanitary buildings must be interpreted consistently with the purpose and principles of Building Act 2004.  The purpose and principles of Building Act 2004 envision that the Act will be interpreted in a way that (among other things) ensures that people who use buildings can do so safely and without endangering their health. 

When cases arise where buildings can not be used safely and without endangering health, Council will act consistently with the purpose and principles of Building Act 2004 by classifying buildings as dangerous and or insanitary where this is legally sustainable.  For instance, Council will classify buildings as insanitary when they are offensive or likely to be injurious to health because they have been used in a way that brings them into a state of disrepair (for example, buildings used as clandestine labs may be in a state of disrepair because the use of offensive chemicals that are injurious to health are absorbed into the walls of the building creating the need for the walls to be repaired or replaced).   

Dangerous and insanitary buildings policy process

For the purpose of performing its functions in relation to Dangerous and Insanitary buildings, Council wishes to act in accordance with existing Council policies and procedures.

First and foremost, Council will encourage all building owners to build and keep their buildings in a condition that is most suitable for the buildings intended uses.  Council will collaborate with building owners to promote the achievement of safe and healthy buildings in Porirua City.   

When Council receives information that certain buildings are potentially Dangerous and or Insanitary, such buildings will be investigated (in conjunction and consultation with the owner where possible) for legislative compliance.  Council will then notify the owner either that the building is not Dangerous and or Insanitary or that the building is Dangerous and or Insanitary and that certain action will be required to be taken.  Council will consult and negotiate with owners about the nature and detail of any actions that will need to be taken.  Council will monitor and review actions taken to ensure sufficient progress or compliance has been made.      

In relation to buildings investigated, Council will make notes on the building’s file.  Such notes may include the Dangerous and or Insanitary classification of the building, any outstanding requirements or any significant risks.  Council may include this information on LIMs or PIMs. 

Policy on dangerous and insanitary buildings with significant heritage values

While Council will follow the process described above in relation to Dangerous and Insanitary buildings that have or may have significant heritage value (defined here as buildings in the District Plan Heritage Register, Historic Places Register or as designated for the purpose of this policy by the General Manager, Strategic Policy), Council will support owners of such buildings to find solutions to health and safety issues in a manner that sustainably manages the important heritage values of such buildings.   

In relation to buildings with significant heritage values, Council will provide relatively longer timeframes for danger to be reduced or removed or insanitary conditions to be prevented.  In particular, when deciding on an appropriate timeframe for building work to be complete and certified, principles (d) and  (l) of Building Act 2004: s4(2)[1] will be emphasised.  

In relation to buildings registered in accordance with Historic Places Act 1993, Council will consult New Zealand Historic Places Trust.  In relation to buildings of local significance, Council will consult people who may have an interest in or be affected by work undertaken (including New Zealand Historic Places Trust). 


I Dangerous and insanitary buildings policy review

This policy will be reviewed within five years from the date of adoption in accordance with the procedure specified in Building Act 2004: s132.

[1] Principles (d) and (l) emphasise: “the importance of recognising any special traditional and cultural aspects of the intended use of a building” and “the need to facilitate the preservation of buildings of significant cultural, historical, or heritage value”

A      INTRODUCTION

The Dangerous and Insanitary Buildings Policy (“the Policy”) was developed to comply with section 131 of the Building Act 2004 (“the Act”) which requires the Council to have a policy on Dangerous and Insanitary Buildings. 

This Policy replaces the Porirua City Council: Dangerous and Insanitary Buildings Policy 2011

This Policy must be reviewed at least every five years.

The Council may decide to review the Policy at any time within the five year review requirement.

In adopting or making any changes to the Dangerous and Insanitary Buildings Policy the Council must use the Special Consultative Procedure in section 83 of the Local Government Act 2002 and in accordance with section 132 of the Building Act 2004

This Policy includes “affected” buildings as defined in section 121A of the Building Act 2004 and as amended by the Building Amendment Act 2013.

The Policy does not cease to have effect because it is due for review or is being reviewed.

 

B      PRINCIPLES UNDER THE BUILDING ACT 2004

This Policy has been developed and will be implemented using a pragmatic approach.  Our approach takes into account the ‘Principles’ of the Building Act 2004, which, among other things, seek to ensure that:

  • People who use buildings can do so safely and without endangering their health.
  • People who use a building can escape from the building if it is on fire.
  • When cases arise where buildings cannot be used safely and without endangering health, Council will act consistently with the purpose and principles of Building Act 2004 by classifying buildings as dangerous and/or insanitary where this is legally sustainable.
  • Council will classify buildings as insanitary when they are offensive or likely to be injurious to health because they have been used in a way that brings them into a state of disrepair (for example, buildings used as clandestine labs may be in a state of disrepair because the use of offensive chemicals that are injurious to health are absorbed into the walls of the building creating the need for the walls to be repaired or replaced). 
  • Council will endeavour to strike a balance between risks posed by dangerous, affected, insanitary buildings and broader social and economic issues involved.
  • The Council will take a pragmatic approach to administering the Building Act 2004 and this Policy in a fair and reasonable way.
  • The Council is committed to ensuring that the Porirua district is a safe place to live and work in.   Our Dangerous and Insanitary Buildings Policy is consistent with our strategic priorities, one of which is to provide a city that is, healthy, safe and attractive so that our diverse communities and visitors have a great village and city experience.

Porirua Council is expecting strong growth in the Porirua District. It is projected that Porirua will see population growth from 10,000–12,000 people (approximately 0.70 per cent growth per annum) to 29,400 additional people (an average annual growth of 1.7 per cent per annum) over a 25 year period.    

These projections of growth could see an increase in conversions of existing aged buildings, lack of maintenance, overcrowding and illegal building alterations which could cause serious building problems for occupants.  The failure to obtain a building consent or the negligent use of a building for a purpose for which it is not suitable can result in a building no longer complying with the Building Code and pose a danger to the occupants.  Dangers could include inadequate fire protection, and means of escape or danger of collapse.

 

C      PURPOSE

The purpose of this policy is to:

  • Provide a transparent, reasonable and certain framework within which Council and its partners will manage unsatisfactory building conditions.
  • Reduce the potential risk posed to residents in the district by dangerous, affected or insanitary buildings.
  • The Council is mindful that there are certain risks in relation to dangerous and insanitary buildings that people in Porirua are willing to take.    


D      OBJECTIVE

Council’s key objective is to discharge its responsibilities for dangerous, insanitary and affected buildings in line with the Building Act 2004. While doing this the Council will endeavour to strike a balance between the threats posed by dangerous, affected and insanitary buildings and the broader social and economic issues affecting the community that are involved.

For the purposes of this Policy it is the building owner’s responsibility to ensure that the buildings comply with Building Act 2004 requirements. The Council can give no assurance or guarantee that any building is safe or sanitary at any time.

The Council’s responsibility is to ensure that when dangerous or insanitary conditions are found, the danger is reduced or removed and the owner takes action to prevent the building from remaining dangerous or insanitary.

Where an owner fails to take steps to address the dangerous or insanitary state of a building, the Council may exercise its powers to take those steps on the owner’s behalf and to seek to recover any resulting costs from the owner in accordance with the Building Act 2004.


E      SCOPE OF POLICY

This Policy applies to all buildings within the Porirua District, including those buildings which have previously been issued with a building consent, code of compliance certificate or other form of certification. This is because the current use and/or maintenance of the building, events affecting building performance (such as fire or natural hazard events), or the state of nearby buildings can all impact on the health and safety of building occupants.

Earthquake prone buildings are addressed in the Council’s Earthquake-Prone Building Policy and is therefore excluded from this Policy.

 

F      RELATED LEGISLATION AND DEFINITIONS

In considering how to address non-compliance Council must be mindful of any matters that require consideration under other legislation or compliance mechanisms. In particular, and in addition to the Building Act 2004, Council shall consider the following:

  • Local Government Act 2002;
  • Resource Management Act 1991;
  • Civil Defence Emergency Management Act 2002;
  • Heritage New Zealand Pouhere Taonga Act 2014;
  • Health Act 1956.

 Note: The Health Act 1956 contains provisions that deal with nuisance conditions related to certain matters associated with housing.  For example section 29(f) refers to overcrowding likely to be injurious to health and section 42 authorises a local authority to issue a ‘repair notice’ or a ‘closing order’ where there are insanitary conditions likely to cause injury to the health of persons, or a dwelling that is otherwise unfit for human habitation.  The Council may decide to use powers under the Health Act instead of or in addition to the Building Act.

 Definitions

 For the purposes of this Policy the definitions in the table below shall apply.

Where a definition has the same meaning as a definition in the Building Act, the definition, for the purposes of this Policy, includes any subsequent amendment to the definition in the Building Act.

 To avoid doubt, where a definition in the Building Act differs from a definition in this Policy, the definition in the Building Act has precedence. Please see grid below.


 G     GENERAL APPLICATION - PROCESS

For the purpose of performing its functions in relation to dangerous and insanitary buildings, Council wishes to act in accordance with existing Council policies and procedures.  Accordingly the Council’s general approach is

1. First and foremost, Council will encourage all building owners to build and keep their buildings in a condition that is most suitable for the buildings intended uses. 


2. Council will collaborate with building owners to promote the achievement of safe and healthy buildings in Porirua City.   

3. When Council receives information that certain buildings are potentially dangerous and/or insanitary, such buildings will be investigated and  Council will

a. check the details of the property against Council records

b. have an authorised officer undertake an inspection of the building. In doing this Council may seek advice from New Zealand Fire and Emergency Service, New Zealand Police or any other professional organisation deemed appropriate by Council

c. Prepare an inspection record


4. Council will then notify the owner either that the building is not dangerous and/or insanitary or that the building is dangerous and/or insanitary and that certain action will be required to be taken. 


5. If Council is satisfied that a building is dangerous and/or insanitary it may use its powers under sections 124 and 126 of the Building Act 2004 to require certain actions to be undertaken such as:

a. erecting a hoarding or fence to prevent people from approaching the building nearer than is safe

b. placing a notice that warns people not to approach the building

c. except in the case of an affected building, issuing a notice that complies with section 125(1) requiring work to be carried out on buildings to- (i) reduce or remove the danger; or (ii) prevent the building from remaining insanitary.  

6. Council will consult and negotiate with owners about the nature and detail of any actions that will need to be taken.

7. Council will monitor and review actions taken to ensure sufficient progress or compliance has been made.  

8. In relation to buildings investigated, Council will make notes on the building’s file.  Such notes may include the dangerous and or insanitary classification of the building, any outstanding requirements or any significant risks.  Council may include this information on LIMs or PIMs. 

9. Immediate Danger – If a building presents an immediate danger or health hazard to people within and/or around it, or to surrounding buildings, Council may choose to use its powers under section 129 of the Building Act to remove the danger or fix the insanitary conditions. This may include the demolition of the building.

If the building is a scheduled heritage building, the Council will take into account its heritage values in determining a course of action. Where practicable this will follow the provisions in Section H of this Policy.

10. Where a state of emergency has been declared (or following a state of emergency, when a transition period has been declared), the Council may choose to exercise powers under sections 25 and 64 of the Civil Defence Emergency Management Act 2002 instead of or in addition to powers under the Building Act 2004

 

Inspections

Authorised officers are entitled at all times during normal working hours to inspect any building to identify any dangerous or insanitary buildings and may enter any premises for that purpose, unless the building is a household unit. If the building is a household unit which is being used as a household unit, the Council must either obtain consent from the occupier or an order from the District Court before it can enter to carry out an inspection.

Note: All inspections of potentially dangerous, affected or insanitary buildings will involve assessment of the condition of the building in terms of the definitions of section 121 (meaning of ‘dangerous building’), section 121A (meaning of ‘affected building’), section 123 (meaning of ‘insanitary building’) of the Building Act.  Inspection records will be prepared in all cases.

 

Disputes

Where a building owner disputes a Council decision, or proposed action, relating to the exercise of the Council’s powers under sections 124 and 129 of the Building Act, the owner may apply for a determination from the Chief Executive of the Ministry of Business, Innovation, and Employment (MBIE) (see section 177).  Such a determination is binding on the Council.

 

Information Disclosure

The Local Government Official Information and Meetings Act 1987 (section 44A) requires the Council to include information concerning any consent, certificate, notice, order, or requisition affecting the land or any building on the land previously issued by the territorial authority on the Land Information Memorandum (LIM) for a property.

Council will include information relating to notices that have been issued by Council regarding dangerous and insanitary conditions, or affected building status that are not resolved.  However, where dangerous and insanitary conditions and affected building status have been resolved, information will not be included on a LIM.

Note: Information about those matters may still be made available in response to a request for information in accordance with the Local Government Official Information and Meetings Act 1987.

 The Council is required under section 216(e) of the Building Act to hold a summary of any written compliant concerning alleged breaches of the Act, and the Council’s response.  This information will be provided upon request and is subject to the requirements of section 217 of the Building Act.


 Co-operation with other Agencies

Council will work with Heritage New Zealand Pouhere Taonga, Fire and Emergency New Zealand, the New Zealand Police and other agencies to achieve the purpose of the Building Act.

 

Costs and Timeframes

The Council may issue a notice under section 124(2)(c) of the Act requiring work to be carried out on a dangerous or insanitary building to reduce or remove the danger, or to prevent the building from remaining insanitary. 

 Buildings that are determined to be dangerous, but not immediately dangerous, will be subject to the minimum timeframes for the reduction or removal of the danger of not less than 10 days (in accordance with section 125(1)(d) of the Building Act).

If the required work on a dangerous, affected or insanitary building is not completed or proceeding with reasonable speed, the Council may use its powers under section 126 of the Building Act and apply to the District Court to gain authorisation to carry out the building work required under the notice.

If the Council carries out building work (see section 126 of the Building Act) or under a warrant (see section 129 of the Building Act), it is entitled to recover costs associated with that work from the building owner.

 Fees and charges as below

https://poriruacity.govt.nz/services/building-consents/building-consents/#other-fees-and-charges

 

H  POLICY ON DANGEROUS AND INSANITARY BUILDINGS WITH SIGNIFICANT HERITAGE VALUES

This Policy applies to dangerous, affected and insanitary buildings that have or may have significant heritage value.

 ‘Historic heritage’ buildings are buildings listed in the:

  • District Plan Historic Heritage Schedule which records historic heritage buildings and sites in Porirua City. 
  • The Building Act 2004 section 7 which defines ‘heritage building’.
  • The Resource Management Act 1991 which sets out matters of national importance, and
  • The Historic Places Act 1993 which establishes a register of historic places.

 

For the purposes of this Policy there is an expectation that work on a heritage building will be done in a manner that protects its heritage value, therefore Council will:

  • support owners of such buildings to find solutions to health and safety issues in a manner that sustainably manages the important heritage values of such buildings. 
  • provide relatively longer timeframes to buildings with significant heritage values, for danger to be reduced or removed or insanitary conditions to be prevented.

 

When deciding on an appropriate timeframe for building work to be complete and certified, Council will emphasise the Principles set out in section 4(2) of the Building Act, particularly

  • principle - (d) the importance of recognising any special traditional and cultural aspects of the intended use of a building, and
  • principle  (l) the need to provide protection to limit the extent and effects of the spread of fire, particularly with regard to—(i) household units (whether on the same land or on other property); and (ii) other property:

 

In relation to buildings registered in accordance with Historic Places Act 1993, Council will consult New Zealand Historic Places Trust.  In relation to buildings of local significance, Council will consult people who may have an interest in or be affected by work undertaken (including New Zealand Historic Places Trust). 


RELATED DOCUMENTS

Reference to template checklist for inspection and monitoring (refer to Ministry of Business and Innovation and Employment (MBIE) guideline below).

https://www.building.govt.nz/assets/Uploads/building-officials/guides/dang-insan-guidance.pdf

How you can have your say

The formal consultation process begins on Tuesday 3 December 2019 and ends  Wednesday 5 February 2020 at 5pm. There are a number of ways you can have your say:

  • Go to the public consultation section of our website poriuracity.govt.nz
  • The easiest way to have your say – submit through our submissions portal consult 24 Link
  • You can also download the Statement of Proposal (SOP) submission form.
  • By email to: submissions@poriruacity.govt.nz with “Dangerous and Insanitary Buildings Policy” in the subject line
  • By hand at our front counter at 16 Cobham Court, Porirua City or at any of our city libraries
  • By post to: Porirua City Council, PO Box 50 218, Porirua City 5240, Attention: “Dangerous and Insanitary Buildings Policy”.


Please include your name and contact details, and let us know if you would like to attend a hearing to speak in support of your submission (so that we can allocate you a speaking time). 

The hearing will be held on 20 February 2020.

We’d like to hear your thoughts on our Statement of Proposal for the review of our Dangerous, Affected and Insanitary Buildings Policy. 

The last review of our Policy occurred in 2011, since that time there have been changes to the Building Act 2004 (the Act). We are looking to update and make a few changes to our Policy so that it complies with new requirements under the Act and the Building Amendment Act 2013.

Summary of the proposal

Porirua City Council (the Council) is required to have a Dangerous, Affected and Insanitary Buildings Policy under the Building Act 2004.  The policy outlines how the Council will manage situations where it considers a building or buildings to be either dangerous, affected or insanitary.

Section 131 of the Act says that the policy must state:

  • The approach the territorial authority will take in performing its functions under Part 2 (Building), Subpart 6 (Special provisions for dangerous, affected, and insanitary buildings) of the Act; and
  • The territorial authority’s priorities in performing those functions; and
  • How the policy will apply to heritage buildings and include affected buildings.

The policy is required to be reviewed every five years.  Amendment or replacement of the policy may only be made in accordance with the Special Consultative Procedure set out in section 83 of the Local Government Act 2002.


Background

The Building Act 2004 (the Act) requires all territorial local authorities to adopt a policy on dangerous, affected and insanitary buildings.  In addition, if amending or replacing the policy, section 132 of the Act requires consultation to be carried out using the Special Consultative Procedure (section 83) in the Local Government Act 2002.

The Act requires a territorial authority to complete a review of the policy within five years after the policy was adopted and then at intervals of not more than 5 years. Our policy was first adopted in 2006, and reviewed in 2011.  The policy is now due for another review.

Reason for this proposal

The review allows us to update the policy and align it with changes to the Building Act 2004 and to comply with new requirements brought in by the Building Amendment Act 2013.  The Building Amendment Act 2013 requires the Council to take into account “affected buildings” in its Dangerous and Insanitary Buildings Policy.

  • We have now included this change in the draft Policy, along with a number of other minor amendments, such as:
  • A change to Part H of the policy, which deals with the Council’s approach to heritage buildings that are classified as dangerous, insanitary or affected buildings.
  • Updating definitions and relevant legislation; and
  • an emphasis on the principles to be applied in performing functions or duties or exercising powers under the Act; and
  • the inclusion of information about disputes and information disclosure.

 

The proposal

The Dangerous and Insanitary Buildings Policy was adopted in 2006 and last reviewed in 2011.  Under section 131 of the Building Act this Policy needs to be reviewed.

As part of the review process we are proposing changes to the Dangerous and Insanitary Buildings Policy, some of which are outlined above.  The changes are part of ensuring the Council is meeting its requirements of providing a reasonable and certain framework to ensure the health and safety of people and the protection of property are being maintained in and around dangerous and insanitary buildings.  The changes and the update of the policy will also ensure the Council continues to perform its functions in relation to dangerous and affected and insanitary buildings.

Also as part of the review process it is proposed to commence public consultation between 3/12/2019 - 5/2/2020 as required under section 132 of the Act and section 83 of the Local Government Act 2002.

Key Dates

When What
3/12/2019 Submissions open
5/2/2020 Submissions close
20/2/2020 A combined hearing & deliberations, where submitters present to the Te Puna Kōrero and then Te Puna Kōrero Committee deliberates and agree to changes (if any).
11/3/2020 Dangerous and Affected and Insanitary Buildings Policy adopted by Council

Your privacy

All submissions are public information. This supports our drive to be as transparent as possible, but, if there are any personal details you don’t want made public, please let us know.


Want to know more

If you have any questions, or would like a little more information, please email Sui at sui.moe@poriruacity.govt.nz or call on 04 2371412